KASCKAROW v. BOARD OF EXAMINERS OF SEX OFFENDERS OF STATE

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Matter of Daniel KASCKAROW, Petitioner, v. BOARD OF EXAMINERS OF SEX OFFENDERS OF The STATE of New York, Respondent.

No. 10237/11.

    Decided: October 25, 2011

Appellate Advocates, New York City (Warren S. Landau of counsel), for petitioner. Eric T. Schneiderman, Attorney General, New York City (Maria Hartofilis of counsel), for respondent.

Petitioner Daniel Kasckarow petitions for an order and judgment, pursuant to CPLR 7801–7806, annulling and vacating the January 25, 2011 final determination of respondent Board of Examiners of Sex Offenders of the State of New York (Board) on the grounds the determination was arbitrary and capricious, was affected by error of law and involved an abuse of discretion.

It is ORDERED and ADJUDGED that the petition is dismissed.

The essence of petitioner's claim is that his Florida nolo contendere plea to the crime of indecent assault (former Fla Stat § 800.04[3] ), for which the court withheld adjudication, and entered an “order of supervision” placing petitioner on “sexual offender probation” for four years, does not constitute a conviction for purposes of the Sex Offender Registration Act (Correction Law art 6–C [SORA] ), and that, as such, the Board erred in determining that petitioner was required to register under SORA.

The underlying facts are largely undisputed. By an April 1998 Information, the State of Florida charged that, on October 1, 1997, petitioner, who was 18 at the time, violated former Florida Statutes § 800.04(3) by committing an act of Sexual Battery as defined in Florida Statutes § 794.011(1)(h)1 upon a child under the age of 16.2 On June 4, 1999, petitioner entered a plea of nolo contendere to the charge for which the court withheld adjudication, and the court entered an “order of supervision” placing petitioner on “sexual offender probation” for four years. In March 2001, the Florida court granted a defense motion to terminate petitioner's probation and petitioner was thereafter required to register as a sex offender under Florida Statutes § 943.0435, Florida's version of SORA.

Prior to moving to New York, petitioner sent a letter dated February 1, 2006, to the New York State Division of Criminal Justice Services (DCJS) informing it that he was required to register as a sex offender in Florida and the he intended to move to New York by February 8, 2006. DCJS thereafter sent petitioner sex offender registration form, which petitioner executed and returned. After receiving this form, the Board, in a letter dated March 8, 2006, determined that petitioner was a sex offender required to register under SORA, and upon the recommendation of the Board, on November 14, 2006, the court (Hall, J., Supreme Court, Kings County) determined that petitioner's Final Risk Level Determination was level 1.

In October 2009, petitioner commenced an Article 78 proceeding (Supreme Court, Kings County Index No. 26493/09) to vacate the Board's determination that he was required to register as a sex offender under SORA. In a decision dated June 11, 2009, the court (Rothenberg, J.) determined that petitioner was entitled to a hearing to determine whether petitioner was properly served with the Board's notification letter informing him that he was subject to the registration requirements of SORA. Rather than proceed with such a hearing, the Board, on August 4, 2010, stipulated that it would recommence the registration process and “re-issue a final determination.” On January 25, 2011, the Board issued a new determination informing petitioner that he was required to register under SORA because he had been convicted of sex offense as set forth in Correction Law § 168–a, and petitioner has since commenced the instant proceeding to vacate or annul the January 25, 2011 determination.3

Petitioner's claim turns on whether the Florida proceeding can serve as a basis for requiring him to register as a sex offender under SORA. SORA indisputably requires persons convicted of certain sex offenses in other jurisdictions to register as sex offenders when they move to New York (see Matter of Smith v. Devane, 73 A.D.3d 179, 181–182, 898 N.Y.S.2d 702 [2010], lv. denied 15 N.Y.3d 708, 909 N.Y.S.2d 22, 935 N.E.2d 814 [2010] ). Here, the Board relies upon the section requiring a person to register for a “conviction of ․ (ii) a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred” (Correction Law § 168–a[2][d][ii] ).4 Although petitioner concedes that he was required to register as a sex offender in Florida based on the Florida proceeding, petitioner asserts that the nolo contendere plea with adjudication withheld does not qualify as a conviction for purposes of Correction Law § 168–a(2)(d)(ii).

Because SORA does not define “conviction,” the court in Matter of Smith found it appropriate to look to CPL 1.20(13), which provides that conviction includes “the entry of a plea of guilty” to an accusatory instrument (or counts thereof) (Matter of Smith, 73 A.D.3d at 182, 898 N.Y.S.2d 702). New York does not recognize nolo contendere pleas (see People v. Daiboch, 265 N.Y. 125, 129, 191 N.E. 859 [1934] ).5 Nevertheless, the fact that a defendant does not technically admit guilt in a nolo contendere plea has not prevented New York from recognizing that a nolo contendere plea from another jurisdiction constitutes a conviction for sentencing a defendant as a second felony offender (see People v. Daiboch, 265 N.Y. at 129, 191 N.E. 859; People v. Long, 207 A.D.2d 988, 989, 617 N.Y.S.2d 97 [1994], lv. denied 85 N.Y.2d 864, 624 N.Y.S.2d 383, 648 N.E.2d 803 [1995] ), an aggravating factor for a first degree murder charge under Penal Law § 125.27(1)(a)(ix) (see People v. Williamson, 301 A.D.2d 860, 862, 755 N.Y.S.2d 443 [2003], lv. denied 100 N.Y.2d 567, 763 N.Y.S.2d 824, 795 N.E.2d 50 [2003] ), a grounds for parole violation (see People v. Johnson, 173 Misc.2d 254, 257, 661 N.Y.S.2d 789 [Yates County Ct. 1997] ), a grounds for disbarment (see Matter of Ward, 18 A.D.2d 15, 16, 238 N.Y.S.2d 278 [1963] ), and denial of a civil service application (see Dower v. Poston, 76 Misc.2d 721, 724, 351 N.Y.S.2d 272 [Sup. Ct. Albany County 1973] ).

New York does recognize Alford pleas (see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 [1970] ), which are similar to nolo contendere pleas (see Alford, 400 U.S. at 37, 91 S.Ct. 160 [found no material difference between a plea of nolo contendere and an Alford plea] ), and, in which a court will accept a plea even where a defendant negates an essential element of the charged crime in his or her allocution (see Matter of Silmon v. Travis, 95 N.Y.2d 470, 475, 718 N.Y.S.2d 704, 741 N.E.2d 501 [2000] ). Importantly, the Court of Appeals has recognized that, from the state's perspective, an Alford plea is no different from any other guilty plea, and may be used for the same purposes as any other conviction (see Matter of Silmon, 95 N.Y.2d at 475, 718 N.Y.S.2d 704, 741 N.E.2d 501), including for impeachment (see People v. Miller, 91 N.Y.2d 372, 378, 670 N.Y.S.2d 978, 694 N.E.2d 61 [1998] ), a predicate for enhanced sentencing (see People v. Andrews, 78 A.D.3d 1229, 1232–1233, 911 N.Y.S.2d 221 [2010], lv. denied 16 N.Y.3d 827, 921 N.Y.S.2d 191, 946 N.E.2d 179 [2011]; People v. Harvey, 235 A.D.2d 325, 652 N.Y.S.2d 960 [1997], lv. denied 89 N.Y.2d 1036, 659 N.Y.S.2d 866, 681 N.E.2d 1313 [1997] ), a predicate for civil penalties (Matter of Hopfl, 48 N.Y.2d 859, 860, 424 N.Y.S.2d 350, 400 N.E.2d 292 [attorney disbarred based on Alford plea] ), and sex offender registration under SORA (see People v. J.G., 171 Misc.2d 440, 445–446, 655 N.Y.S.2d 783 [Sup Ct. Richmond County 1996] ).

In sum, a nolo contendere plea is generally deemed a conviction. There is also nothing unique about SORA that suggests that a nolo contendere plea should be treated differently for purposes of SORA registration. Accordingly, a nolo contendere plea is sufficiently akin to a guilty plea to be deemed a conviction for purposes of CPL 1.20(13), and thus may be considered a conviction for purposes of SORA.

Petitioner nevertheless argues that the Florida proceeding should not be deemed a conviction not just because of the nolo contendere plea, but also because the adjudication was withheld. Such an argument was essentially rejected by the Appellate Division, Third Department, in Matter of Smith. In Matter of Smith, the Board required the petitioner to register under SORA based on a guilty plea to a Texas crime requiring that the petitioner register as a sex offender in Texas, in which the court imposed a “deferred adjudication” of guilt,6 suspended imposition of a prison sentence, and placed the petitioner under a term of community supervision, akin to probation (Matter of Smith, 73 A.D.3d at 181, 898 N.Y.S.2d 702). As noted above, the Third Department emphasized that it is the entry of the guilty plea that constitutes a conviction under New York law (id. at 182, 898 N.Y.S.2d 702). Consequently, the Third Department found that the Texas guilty plea constituted a conviction requiring registration under SORA, notwithstanding the deferred adjudication of guilt (id. at 183, 898 N.Y.S.2d 702).

By parity of reasoning with Matter of Smith, it is petitioner's nolo contendere plea here that constitutes the conviction, and the fact that adjudication was withheld has no bearing on whether the Florida crime constitutes a conviction for purposes of SORA (see People v. Mitch, 1 Misc.3d 905[A], 2003 N.Y. Slip Op. 51513[U], 2003 WL 23100166 [Yates County Ct. 2003][guilty plea with adjudication withheld required registration under SORA]; see also Matter of Smith, 73 A.D.3d at 182–183, 898 N.Y.S.2d 702; United States v. Hardeman, 598 F.Supp.2d 1040, 1047–1048 [N.D.Cal 2009] ). Courts have come to similar conclusions with respect to use of an adjudication withheld for purposes of a parole violation (see People ex rel. Cassarino v. New York State Div. of Parole, 170 Misc.2d 47, 50–51, 649 N.Y.S.2d 323 [Sup. Ct. Kings County 1996] ) and jail time credit (see People ex rel. Lesnowski v. Von Holden, 107 Misc.2d 581, 585, 435 N.Y.S.2d 620 [Sup. Ct. Oneida County 1980] ).

There is also nothing fundamentally unfair about deeming plaintiff's Florida proceeding a conviction for purposes of SORA, since, as plaintiff concedes, plaintiff's nolo contendere plea with adjudication withheld for violating Florida Statutes § 800.04(3) constitutes a conviction for purposes of Florida's sex registration requirements, and required him to register as a sex offender in Florida (see Price v. State, 43 So.3d 854, 857 [Fla Dist. Ct. App. 2010]; Fla Stat § 943.0435[1][a][1][a][II] ). Indeed, Florida courts have held that a nolo contendere plea with adjudication withheld is generally considered a conviction for purposes of determining a defendant's sentence for subsequent convictions (see Montgomery v. State, 897 So.2d 1282, 1286 [Fla.2005]; State v. Mason, 979 So.2d 301, 303–304 [Fla. Dist. Ct. App. 2008], review denied 990 So.2d 1059 [Fla.2008]; cf. Smith v. State, 28 So.3d 838, 876–878 [Fla.2009] [while a nolo contendere plea is a conviction for purposes of sentencing, such a plea is not a conviction for purposes of a capital murder aggravating factor], cert. denied ––– U.S. ––––, 131 S.Ct. 3087, 180 L.Ed.2d 912 [2011] ).7

Petitioner nevertheless submits that the nolo contendere plea with adjudication withheld should be considered like a youthful offender adjudication. This argument, however, ignores the fact that Florida has its own youthful offender statute (Florida Statutes Chapter 958), and that petitioner was not adjudicated as a youthful offender under that statute. Moreover, even if petitioner had been adjudicated a youthful offender under Florida law, such treatment would not have affected petitioner's obligation to register as a sexual offender in Florida (see Dejesus v. State, 862 So.2d 847, 849 [Fla. Dist. Ct. App. 2003]; see also People v. Kuey, 83 N.Y.2d 278, 284, 609 N.Y.S.2d 568, 631 N.E.2d 574 [1994][under Florida law, a youthful offender adjudication may be used as a predicate conviction for enhanced sentencing purposes] ). Since a Florida youthful offender would have to register as a sex offender in Florida, the proceeding would be considered a conviction under SORA, even though a New York youthful offender would not have to register (see People v. Kuey, 83 N.Y.2d at 284–285, 609 N.Y.S.2d 568, 631 N.E.2d 574 [Florida youthful offender adjudication is a conviction under New York's second felony offender statute]; People v. Coolbaugh, 259 A.D.2d 781, 782, 687 N.Y.S.2d 737 [1999] ).

Petitioner also argues that registration should not be required here because there is no New York felony sex offense that is equivalent to Florida Statutes § 800.04(3). Assuming this to be correct,8 Correction Law § 168–a(2)(d)(ii) is intended to require registration for out of state sex offender felonies that have no New York equivalent. This purpose is evident from the legislative history of SORA. When SORA was first enacted, the only out of state convictions that required registration in New York were felonies with the same essential elements as a New York crime requiring registration (see L. 1995, ch. 192 § 2). It is thus obvious that the legislature added what is now Correction Law § 168–a(2)(d)(ii) (see L. 1999, ch. 453) in order to include offenses from other jurisdictions that do not have the same essential elements as New York sex offenses (People v. Kennedy, 7 N.Y.3d 87, 94, 817 N.Y.S.2d 614, 850 N.E.2d 661 n5 [2006][Graffeo, J., concurring] ). Under these circumstances, and in light of the non-punitive, remedial public safety purpose underlying SORA, the lack of an equivalent New York felony conviction is not grounds for exempting petitioner from the registration requirement (see Matter of North v. Board of Examiners of Sex Offenders of NY, 8 N.Y.3d 745, 752, 840 N.Y.S.2d 307, 871 N.E.2d 1133 [2007] ).

In sum, petitioner has failed to demonstrate that his Florida nolo contendere plea with adjudication withheld may not be considered a conviction under SORA. In the absence of any other grounds for annulling or vacating the Board's determination that he is required to register as a sex offender under SORA, and in the absence of any factual issues, the petition must be dismissed (see Matter of Smith, 73 A.D.3d at 185, 898 N.Y.S.2d 702; see also Montepagani v. New York City Dept. of Health, 85 A.D.3d 474, 475, 924 N.Y.S.2d 784 [2011]; Buckley v. Town of Wappinger, 12 A.D.3d 597, 598, 785 N.Y.S.2d 98 [2004]; Barreca v. DeSantis, 226 A.D.2d 1085, 1086, 641 N.Y.S.2d 953 [1996] ).

Although I am compelled by the statutory provisions, as interpreted by case-law, to dismiss the petition,9 I wish to express my own dissatisfaction with requiring petitioner to register under the circumstances of this case. Assuming that the victim was a fifteen year-old high school classmate, that the victim consented to having sexual relations with plaintiff, and that the only basis for the prosecution was the victim's age, requiring petitioner to register for 20 years (Correction Law § 168–h[1] ) appears to be an unduly harsh consequence for consensual sex between teenage classmates who were close in age. Commentators have criticized the continued criminalization of such teen sex, and the laws requiring such offenders to register (see e.g. Stine, Comment, When Yes Means No, Legally: An Eighth Amendment Challenge to Classifying Consenting Teenagers as Sex Offenders, 60 DePaul L.Rev. 1169 [2011]; Wynton, Note, Myspace, Yourspace, But Not Their Space: The Constitutionality of Banning Sex Offenders from Social Networking Sites, 60 Duke L.J. 1859 [2011] ). These commentators also compellingly argue that offenders like petitioner simply do not present the danger of re-offending that other sex offenders do, and that their inclusion in the sex offender registries makes the sex offender registration laws a less effective tool in protecting the public from the offenders who are truly dangerous (see Stine, 60 DePaul L.Rev. at 1220–1221; Wynton, 60 Duke L.J. at 1893 n154; see also Doe v. Michigan Dept. of State Police, 490 F.3d 491, 496 [6th Cir.2007]; Doe v. Attorney General, 430 Mass. 155, 164–165, 715 N.E.2d 37, 44 [1999]; see also Morello, Unclear and Unconvincing Evidence in SORA Hearings, NYLJ, April 18, 2011, at 6 [identifying studies showing that recidivism rates for sex offenders are not as high as popularly believed] ).

These concerns led a Michigan appellate court to find that requiring registration of an offender under circumstances similar to those here constituted cruel and unusual punishment under Michigan's constitution (see People v. Dipiazza, 286 Mich.App. 137, 153–157, 778 N.W.2d 264, 273–274 [2009] ).10 Similarly, the Federal government's Sex Offender Registration and Notification Act (SORNA) (42 USC §§ 16901–16918), which imposes registration requirements on certain offenders involved in interstate commerce and imposes minimum standards for state sex offender registration acts (see United States v. Hinckley, 550 F.3d 926, 939 [10th Cir.2008], cert. denied ––– U.S. ––––, 129 S.Ct. 2383, 173 L.Ed.2d 1301 [2009]; United States v. Hardeman, 598 F.Supp.2d 1040, 1042–1045 [N.D.Cal 2009] ), includes a provision excepting offenders from registration requirements where the conduct was consensual and victim was at least thirteen, and the offender not more than four years older than the victim (42 USC § 16911[5][C] ).11 Several states have responded to SORNA by including similar consensual teen-sex exceptions to their registration requirements (see People v. Dipiazza, 286 Mich.App. at 155, 778 N.W.2d at 274; State v. Metzger, 2011 WL 3274157 [Ohio App. 2011] ), including Florida, which allows a sex offender to petition to end his or her registration requirement where his or her criminal conduct falls under the above noted SORNA exception (see Fla Stat § 943.04354; Miller v. State, 17 So.3d 778 [2009], review denied 31 So.3d 177 [Fla.2010] ). It is unfortunate that New York has failed to add such a provision to SORA. Under these circumstances, I believe that requiring petitioner to register here, while required by statute and case law, is manifestly unfair.

This constitutes the decision, order and judgment of the court.

FOOTNOTES

1.  Former Florida Statutes § 800.04(3) (Fla Laws 1984 c. 84–86 § 5; Fla Laws 1990 c. 90–120 § 1), provided that any person who “[c]ommits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years ․ commits a felony of the second degree.” Florida Statutes § 794.011(1)(h) states that “Sexual Battery' means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object, however sexual battery does not include an act done for a bona fide medical purpose.” Accordingly, the Florida crime is akin to a statutory rape charge.

2.  The Florida court documents relied upon by the parties do not indicate the age of the child and the child's age is not shown by any sworn evidence in the record. It is noted, however, that, in a sex registration form filed out by petitioner in March 2006, petitioner represented that the victim was a 15 year old high school classmate.

3.  There is no dispute that an Article 78 proceeding is the appropriate means to obtain judicial review of the Board's determination (see People v. Reitano, 68 A.D.3d 954, 889 N.Y.S.2d 857 [2009], lv. denied 14 N.Y.3d 708, 900 N.Y.S.2d 731, 926 N.E.2d 1237 [2010] ). It is also noted that the Board has raised no procedural objection to the petition in this case.

4.  Correction Law § 168–a(2)(d)(ii) is applicable to petitioner's Florida proceeding, even though petitioner's nolo contendere plea predated the January 1, 2000 effective date of that section because petitioner was still serving his sexual offender probation on the effective date (see Matter of Smith, 73 A.D.3d at 184, 898 N.Y.S.2d 702). It is noted that SORA currently also requires registration for out of state convictions of offenses containing the same essential elements as New York offenses requiring registration and certain specified Federal crimes (Correction Law § 168–a[2][d][i], [iii] ).

5.  As stated in People v. Daiboch, “[t]he plea of non vult or nolo contendere is an ancient plea in criminal cases still in use in some of the States but abolished here. It simply means that the defendant will not contend against the charge but will submit to such punishment as the court inflicts, usually less than would have been imposed after a plea of guilty. The court, however, on such a plea may sentence the prisoner to the same punishment as if convicted after a trial or on a plea of guilty. Aside from the ameliorating effect the plea of non vult has the same consequences in a criminal court as a plea of guilty; at least it is a conviction of the crime to which the plea is taken. In civil cases, however, the plea cannot be used or taken as an admission of the facts alleged in the indictment” (People v. Daiboch, 265 N.Y. at 129, 191 N.E. 859).

6.  In Matter of Smith, the court noted that a deferred adjudication is generally not considered a conviction under Texas law (Matter of Smith, 73 A.D.3d at 182, 898 N.Y.S.2d 702 n4 [citing to Hurley v. State, 130 S.W.3d 501, 505–506 [Tex. Ct. App. 2004] ).

7.  In light of the Appellate Division, Third Department's holding in Matter of Smith, which directly addresses a similar adjudication under SORA, this court is not bound by the court's holding in Matter of Farabell v. Town of Macedon (62 A.D.3d 1246, 1247–1248, 877 N.Y.S.2d 796 [4th Dept. 2009] ) that a nolo contendere plea with adjudication withheld could not constitute a conviction for purposes of whether a petitioner was qualified to serve as a police officer. In addition, the court in Matter of Farabell, noted that it was “undisputed” that a nolo contendere plea with adjudication withheld did not constitute a conviction. Here, in contrast, petitioner does not dispute that his Florida nolo contendere plea with adjudication withheld required him to register as a sex offender in Florida and Florida case law clearly holds that such a plea constitutes a conviction for purposes of sex offender registration.

8.  In this regard, assuming, for the sake of argument, that the victim was 15 as alleged by petitioner in his registration form, petitioner would not have been guilty of similar New York felonies involving the absence of consent based on the age of the victim. In this regard, crimes of rape in the third degree (Penal Law § 130.25[2] ) and criminal sexual act in the third degree (Penal Law § 130.40[2] ) apply where the defendant is twenty-one or more and the victim is less than seventeen. The crimes of rape in the second degree (Penal Law § 130.30[1] ) and criminal sexual act in the second degree (Penal Law § 130.45[1] ) apply where the defendant is eighteen or more and the victim is less than fifteen. It is also an affirmative defense to Penal Law §§ 130.30(1) and 130.45(1) that the defendant was less than four years older than the victim. Rape in the first degree (Penal Law § 130.35[3], [4] ) and criminal sexual act in the first degree (Penal Law § [3], [4] ) apply where the victim is less than eleven years old or where the defendant is eighteen or over and the victim is less than thirteen years old. Although sexual misconduct (Penal Law § 130.20), a class A misdemeanor, would appear to encompass the same essential elements as Florida Statutes § 800.4, there would appear to be some question as to whether it could be relied on as an offense requiring registration under SORA since it was not added as a SORA offense until after the Florida court terminated petitioner's sexual offender probation (see L. 2002, ch. 11, § 1).

9.  I note that petitioner has not raised a constitutional objection to the registration requirement under these facts. I also note, however, that SORA's provisions have already withstood several constitutional challenges (see People v. Knox, 12 N.Y.3d 60, 875 N.Y.S.2d 828, 903 N.E.2d 1149 [2009][due process], cert. denied ––– U.S. ––––, 130 S.Ct. 552, 175 L.Ed.2d 382 [2009]; People v. Szwalla, 61 A.D.3d 1289, 877 N.Y.S.2d 757 [2009][ex post facto and double jeopardy]; People v. McGarghan, 18 Misc.3d 811, 852 N.Y.S.2d 615 [Sup. Ct. New York County 2007] [equal protection], affd 83 A.D.3d 422, 920 N.Y.S.2d 329 [2011] ).

10.  As noted in footnote 9, petitioner has not raised any constitutional challenges to registration. In addition, New York court holdings that registration does not constitute punishment would appear to preclude any cruel and unusual punishment claim under New York law (see People v. Gravino, 14 N.Y.3d 546, 556–558, 902 N.Y.S.2d 851, 928 N.E.2d 1048 [2010]; People v. Szwalla, 61 A.D.3d at 1290, 877 N.Y.S.2d 757).

11.  Even if the absence of such a provision in SORA could be deemed a violation of SORNA, such a violation does not help petitioner, since the only penalty SORNA contains for non-compliance by a state is a reduction in certain funding (42 USC § 16925).

DAVID I. SCHMIDT, J.

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